Judge leaves towing cap in place

Updated 11:29 pm, Wednesday, August 15, 2012

A towing company failed Wednesday to persuade a state district judge to let it charge $250 for a private tow and to stop the city from enforcing its $85 fee cap.

After an hour of arguments by attorneys for Bexar Towing and the city, District Judge Martha Tanner stood by the rulings she'd made over the past month with a swift answer: Her previous order stays in effect.

Those few words mean the city can continue to enforce the price cap and cite any company that violates it.

Since the end of 2010, Bexar Towing has been charging customers $250 for a tow, plus fees that bring the total cost to $293. The company's attorneys have argued they can legally demand that amount because state law allows it.

But the city has its own cap on towing fees. Tanner's July 25 ruling gave the city the green light to enforce its 2002 ordinance that says towing companies can only charge $85 to remove illegally parked vehicles from private parking lots.

A week later, she ruled that San Antonio police officers should follow the department's general manual when handling complaints about alleged overcharges. Shortly after her ruling, police arrested Bexar Towing founder John DeLoach after customers said he charged them $250 per tow.

But Bexar Towing attorneys have said San Antonio police had not enforced the $85 tow cap until May 10, when officers issued roughly 450 citations to the company.

On that day, 10 San Antonio police officers showed up at Bexar Towing's offices and went through records documenting tows for the past two weeks, the company's lawyers said.

Bexar Towing also complained that the city flouted state law by failing to provide a study of the market rate for towing fees. State law says cities must conduct such studies if requested by tow companies, which Bexar Towing had done.

Bexar Towing sued the city May 21, alleging that officials violated the state law. The suit, which will be tried in October, also asks the city to conduct a study to determine a new fair-market value for a private tow.

City officials have said they launched a towing study this summer. But, for now, the current ordinance stands.

The city's attorneys say Texas law gives it authority to impose a lower fee ceiling than the state.

“We would not be here if they followed the law,” said attorney Rick Reyna, representing the city, adding that Bexar Towing “made a conscious effort to ignore the city ordinance.”

Reyna said the company is pulling in $200,000 in gross revenues and $100,000 in gross profits every month. Now, he said it wants the judge to let it charge close to $300 in violation of “a perfectly valid city ordinance.”

Many of the day's arguments were not new ones. But Reyna never addressed the fate of a previous tow study, which Bexar Towing attorney Carleton Spears said was done in 2006 but never made public.

According to testimony by witnesses in the case, the study results indicated the towing fee should be raised to $113. But nothing came of that, or a draft ordinance that attorneys said police and city officials discussed with members of the towing industry last summer.

Bexar Towing lawyers argued the city is ignoring its own study and arbitrarily setting a low towing fee of $85 that will put the company out of business.

The “city is knowingly making these companies operate at a loss,” Spears said. That would be like forcing the San Antonio Express-News to sell newspapers for 25 cents apiece, he said, or forcing Valero Energy Corp. sell gas for 50 cents a gallon.

Spears asked the judge to stop the “tyranny of the city.”

Sitting in the courtroom before the hearing began, DeLoach said he didn't know whether the judge would side with the company. But he said he saw little choice but to ask her to reconsider, saying he had no confidence the city would do the market study required by law.